*1 THIS OPINION IS CITABLE AS PRECEDENT OF THE T.T.A.B.
Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
IN RE INTELLIGENT INSTRUMENTATION, INC.
Serial No. 74/454,693
July 31, 1996
William C. Cahill of Cahill, Sutton & Thomas P.L.C. for applicant
David H. Stine
Trademark Examining Attorney
Law Office 103
(Kathryn Erskine, Managing Attorney)
Before Simms, Cissel and Hohein
Administrative Trademark Judges
Administrative Trademark Judge
An application has been filed by Intelligent Instrumentation, Inc. to register the term "VISUAL DESIGNER" for "computer programs for controlling the acquisition of data from measurement devices for the purposes of analysis, display, testing and automatic control". [FN1]
Registration has been finally refused under Section 2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the basis that, when use in connection with applicant's goods, the term is merely descriptive of them.
Applicant has appealed. Briefs have been filed, but an oral hearing was not requested. We affirm the refusal to register.
It is well settled that a term is considered to be merely descriptive of goods or services, within the meaning of Section 2(e)(1) of Trademark Act, if it immediately describes an ingredient, quality, characteristic or feature thereof or if it directly conveys information regarding the nature, function, purpose or use of the goods or services. See In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). It is not necessary that a term describe all of the properties or functions of the goods or services in order for it to be considered to be merely descriptive thereof; rather, it is sufficient if the term describes a significant attribute or idea about them. Moreover, whether a term is merely descriptive is determined not in the abstract, but in relation to the goods or services for which registration is sought, the context in which it is being used on or in connection with those goods or services and the possible significance that the term would have to the average purchaser of the goods or services because of the manner of its use. See In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
Applicant, in its brief, asserts that when the nature of its goods is understood, the term "VISUAL DESIGNER" is simply suggestive of its computer programs:
Applicant's product ... is ... directed to a particular channel of commerce having to do with the acquisition of data from measurement devices (usually remotely positioned). As noted in Applicant's previous response, Applicant makes and sells computer hardware known as input/output boards for transferring data between external sources and a computer. In the utilization of such hardware, it is frequently necessary to develop an appropriate driver to meet the particular situation in which the specific hardware is placed. Applicant's software permits the specific design of such drivers for use in the particular environment characterized by Applicant's hardware. That is, the channel of commerce in which the present mark is used is directed to the utilization of I/O boards in a great variety of applications with innumerable combinations of features. To facilitate the utilization of Applicant's hardware, these I/O boards must be "customized" for the particular application through the derivation of drivers to accommodate the endless possibility of features encountered by a data collection system in the many possible applications of the system. The term "VISUAL DESIGNER" clearly suggests to a user of Applicant's I/O board hardware that a system exists whereby specific drivers can be derived for the particular application in which these I/O boards are placed. Indeed, the term suggests a "design tool" but is not a description of a design tool.
*2 It is important to note that the utilization of Applicant's software does not result in the design or modification of any inherent software modules within the program; rather, a specific driver is created unique to the user of Applicant's hardware for the collection and display of data and to permit the subsequent control of devices from which the data is derived.
According to the record, advertisements run by applicant emphasize that its computer programs can be used to "Create Custom PC Applications Without Custom Programming!" The advertisements further state:
Create the applications you need--without programming! Visual Designer is a revolutionary, new software development tool. With it you'll save days, weeks, even months of development time. To create your application just select the appropriate function blocks, and then connect them with your mouse. Test, measurement, control, streaming data to disk, spectrum analyzers, strip chart recorders, instrument panels--and much more. It's that simple.
In addition, a brochure submitted by applicant touts, as one of the "FEATURES/BENEFITS" of its computer programs, the product's "[g]raphical, block-diagram development environment" which "requires no programming". The brochure also explains that:
Visual DesignerTM for Windows is a powerful, easy-to-use application generator for PC-based data acquisition, test, measurement and control. Designer takes you beyond programming to quickly create application software customized for your own requirements.
What sets Visual Designer apart from both traditional and graphical programming languages is its ease of use. With Designer, you simply build a block diagram of your application. Time-consuming programming is not required.
Visual Designer lets you capture, record, manipulate, analyze, display, and output data; control processes and devices; and create custom instruments with chart recorders, panel meters, oscilloscopes, spectrum analyzers, and more. You can use Designer over and over to generate any number of applications. ....
Applicant, while conceding in its brief that the term "visual design tools" is a term of art in the computer programming trade, argues that it is not the case that "the term 'VISUAL DESIGNER' follows from the previous use of the term 'visual design tools'." Instead, applicant maintains that the "mark ' VISUAL DESIGNER' ... is a suggestive term referring to the product itself."
The Examining Attorney, on the other hand, has made of record in support of the refusal to register excerpts from a December 13, 1994 search of the "NEXIS" data base [FN2] showing that computer programs which simplify complex programming operations through the visual use of icons and graphical formats are referred to in the trade, as admitted by applicant, as having "visual design tools". Such software development tools, of the kinds which include applicant's programs, also are described as operating in a "visual design" environment. Representative samples of the excerpts are set forth below (emphasis added):
*3 The Magna X high-level programming language and visual design tools let users produce without learning UNIX or C. -- Computer World, October 3, 1994, at 85;
All the tested products include programming languages to supplement the visual design tools. -- Bvte, October 1994, at 129;
Software-development tools publisher Image Soft Inc. is shipping a new 32- bit visual design environment that creates GUI applications for OS/2, Windows and Windows NT. -- Computer Reseller News, September 26, 1994, at 96;
Building an application in Access involves manipulating visual design tools, properties, expressions, macros, and Access Basic code. -- PC Magazine, September 13, 1994, at 198; and
The revamped language, coupled with new visual design tools and a sophisticated database-engine technology, firmly propels dBASE in the direction of rapid application development (RAE) .... -- Id. at 194.
In view thereof, and citing a dictionary definition of the word "designer," the Examining Attorney contends that:
Within the relevant context, it is respectfully submitted that the terminology "Visual Designer" aptly describes both the specific nature and the primary function of the applicant's computer programs
The Webster's Ninth New Collegiate Dictionary (1990) defines "designer", inter alia, as "one that creates and often executes plans for a project or structure; one that creates and manufactures a new product style or design." Applicant's product, as described in its own product brochures and advertising, is an application generator program for personal computers which allows users to create and execute customized applications for use in displaying, recording and manipulating data being sent to a PC from various measurement devices. NOTE: An "application" is simply a program or set of programs designed to perform a particular function or to serve a particular user need. Applicant's product allows these customized applications to be created and executed visually, via the use of menus and icons, rather than requiring the use of complex programming language commands.
The excerpts from recent computer trade publications attached to the final Office Action, excerpted from the LEXIS/NEXIS COMPCOM CURNWS database, clearly illustrate that computer programs which function in this manner, simplifying complex operations through the use of icons and graphical formats, are referred to in the relevant trade as having "visual design tools." It is respectfully suggested that a program such as applicant's, having the primary function of designing new or custom applications via visual design tools, may be aptly described as a visual design program, or simply as a "visual designer."
The facts in this case are closely analogous to those recently considered in In re Time Solutions, Inc., 33 USPQ 2d 1156 (TTAB 1994), wherein the term "manager" was found merely descriptive as applied to computer programs which functioned to "manage" health insurance data within the ordinary meaning or dictionary definition sense of the term "manage." Here, as in Time Solutions, supra, there can be little doubt that the mark "Visual Designer" will immediately convey to consumers pertinent information regarding the most significant feature or function of applicant's programs, namely the use of "visual design tools" to create custom applications.
*4 We concur with the Examining Attorney that, when applied to computer programs for controlling the acquisition of data from measurement devices for the purposes of analysis, display, testing and automatic control, the term "VISUAL DESIGNER" immediately describes, without conjecture or speculation, a significant purpose or function of applicant's goods, namely, that they permit new or custom programming applications to be visually designed instead of being written in a programming language. To the sophisticated and technically knowledgeable purchasers and users of applicant's goods, who no doubt would be familiar with the programming trade's uses of the generic terminology "visual design tools" in connection with software development tools such as applicant's computer programs, there is nothing in the term "VISUAL DESIGNER" which is incongruous, indefinite or susceptible to multiple connotations, nor would any imagination, cogitation or gathering of further information be necessary in order for such persons to perceive precisely the merely descriptive significance of such term as it relates to a significant aspect of what applicant's products are designed to do. Actual and prospective purchasers of applicant's goods, as well as the users thereof, would readily understand that, when joined to form the term "VISUAL DESIGNER," the individual words have a meaning identical to the meaning which ordinary usage would ascribe to those terms in combination. See, e.g., In re Gould Paper Corp., 834 F.2d 1017, 5 USQP2d 1110, 1112 (Fed. Cir. 1987). Any computer program, including applicant's, which has as a basic function or purpose the creation of new or customized programs for controlling the acquisition of data from measurement devices is thus aptly described as a visual design program or, more simply, a "visual designer".
Accordingly, because the term "VISUAL DESIGNER" conveys forthwith a significant purpose or function of applicant's goods, such term is merely descriptive thereof within the meaning of the statute.
Decision: The refusal under Section 2(e)(1) is affirmed.
R. L. Simms
R. F. Cissel
G. D. Hohein
Administrative Trademark Judges, Trademark Trial and Appeal Board
FN1. Ser. No. 74/454,693. filed on November 5, 1993, which alleges dates of first use of September 14, 1993.
FN2. Specifically, the Examining Attorney searched the "CURNWS" file of the "CMPCOM" library using the search request "VISUAL DESIGN!"